On June 22, 2016, the Sixth District Court of Appeals unanimously issued a decision and order affirming the United States District Court’s dismissal of a firefighter’s two count retaliation complaint against a local municipality, four former and current Trustees, and the Fire Chief.

Plaintiff, who is of Asian descent, submitted an application for the vacant Fire Chief position to the township Board of Trustees. During an open board meeting on September 25, 2012, and in a 5-1 vote, the Board disqualified plaintiff’s application as insufficient. Besides missing an entire third page where some of the plaintiff’s credentials would have been listed to complete his application, in response to a written question on the application regarding why he should be selected as chief, plaintiff responded by stating: “To put an end to the corrupt practices brought on by the Board.” In response to a question regarding his goals for the next five/ten years, plaintiff responded: “To witness justice prevail.” The court ruled that these statements on his written application were just plain insulting to the Board.

By way of background, two years previously, in March of 2010, plaintiff filed an EEOC complaint against the township alleging that he was removed as the township’s IT Administrator because he is Asian. The township defended this matter on the ground that plaintiff was not the IT Administrator, although he had assisted with some networking responsibilities in the past. The plaintiff did not pursue a lawsuit against the township in 2010. Following the plaintiff’s 2012 disqualification for the Chief position, he sued claiming the disqualification was in retaliation for his 2010 EEOC complaint in violation of Title VII of the Civil Rights Act of 1964 and Michigan’s Elliott-Larson Civil Rights Act (ELCRA). Plaintiff also claimed that he was harassed by the new Fire Chief in 2013 and 2014 in retaliation for the 2010 EEOC complaint. Plaintiff claimed $1.02 million in damages for lost future wages which he believed he was entitled to because he should have been hired for the vacant position.

The Appellate Court noted for the “failure to interview” portion of the retaliation claim, there was no direct evidence of discrimination and that even circumstantially, a former trustees’ subjective opinion, with nothing more, that the plaintiff was not interviewed due to his EEOC claim was insufficient as a matter of law to support a cause of action. The court also agreed that the current Fire Chief’s actions of counseling the plaintiff regarding his low participation rates were not materially adverse employment actions, nor were the warnings causally connected to the plaintiff’s prior EEOC claim. Another significant factor for both the trial court and appellate court was the fact that the timing between the 2010 EEOC charge and the September 25, 2012 decision by the Board not to interview the plaintiff was simply too remote to establish a claim of retaliation under Title VII order ELCRA. Central to both the trial and appellate court decisions was the United States Supreme Court decision of Univ. of Tex. SW. Med Ctr. V. Nassar, 133 S.Ct. 2517 (2013). To establish a prima facie case of retaliation under Nassar, a plaintiff would have to make an offer of proof that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions on the part of the employer”—meaning defendants could not have denied plaintiff an interview or counseled him for low participation “but for” their retaliatory intent. Both courts found that plaintiff could not prove this threshold requirement.

This case was handled by CMDA attorneys Elizabeth Rae-O’Donnell and Linda Davis Friedland. Karen Daley assisted with preparing the motion.

Elizabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law. She may be reached at (734) 261-2400 or erae@cmda-law.com.

Linda Davis Friedland is an attorney in our Livonia office where she concentrates her practice on commercial litigation, employment and labor law, corporate and business law, estate planning, elder law, probate, trusts, guardianships and conservatorships. She may be reached at (734) 261-2400 or lfriedland@cmda-law.com.

The “freedom of speech” protected by the First Amendment encompasses both actual speech and expressive conduct. R.A.V. v. City of St. Paul, Minn. (S.Ct. 1992). Embodied within the concept of “free speech” is recognition that advocates of unpopular views must be protected, even though their speech may provoke anger in persons who hear it. Terminiello v. City of Chicago (S.Ct. 1949). When a speaker passes the bounds of mere argument the point of seeking to incite a riot, police may intervene against the speaker for the protection of public safety, Feiner v. New York (S.Ct. 1951), but this threshold is reached only where the speaker’s advocacy “is directed to inciting or producing eminent lawless action and is likely to incite or produce such action.” Hess v. Indiana (S.Ct. 1973). “Government officials may not exclude from public places persons engaged in peaceful expressive activities solely because the government actor fears, dislikes, or disagrees with the views those persons express.” Wood v. Moss (S.Ct. 2014).

In two recent opinions, the United States Court of Appeals for the Sixth Circuit has addressed this balance between free speech and public safety. In Occupy Nashville v. Haslam (2014), protestors seeking to bring “attention to disparities in wealth and power in the United States” established a 24-hour-a-day protest encampment on the plaza of a public war memorial in Nashville, Tennessee. As the days passed and the number of protestors grew, problems arose dealing with human waste and trash, together with “an increase in the number of assault complaints and damage to public property.” After three weeks, State officials decided to address these problems by imposing a curfew under which “the plaza would close to the public from 10:00 p.m. until 6:00 a.m. daily.” Protestors arrested for attempting to continue their 24-hour-a-day protest in defiance of the curfew sued the officials for violating the protestors’ First Amendment rights. The Sixth Circuit held that the officials could not be found liable to the protestors, because there is no clearly established constitutional right to occupy public space for an indefinite period and no “unfettered right to threaten the health and safety of the public or the security of public property.”

In Bible Believers v. Wayne County (2015), law enforcement officials also invoked public safety concerns to justify ouster of Christian “evangelists” from a public Arab cultural festival. The evangelists targeted the many Muslim attendees with a provocative, anti-Islamic speech and signs (particularly insulting the Muslim prophet Mohammed), while carrying a severed pig’s head on a stick through the crowd. Some festival attendees threw bottles and other objects at the evangelists. The deputy chief of the sheriff’s department asked the evangelists to leave, with justification that he did not have enough officers at the event to protect the evangelists from the crowd. He warned the evangelists they would be ticketed for disorderly conduct if they refused to leave.

After originally approving the sheriff’s actions, the Sixth Circuit re-heard the case and found the sheriff to have violated the evangelists’ First Amendment rights. The Court held that law enforcement officials have an obligation to protect those who publicly express an unpopular viewpoint from the hostile reaction of those upset by the message. In this instance the sheriff’s course of action allowed the hostile crowd to silence the evangelists. Citing the previous Sixth Circuit case of Glasson v. City of Louisville (1975), the Court admonished that “a police officer has the duty not to ratify and effectuate a heckler’s veto.”

The lesson to be drawn from the Occupy Nashville and Bible Believers opinions is that concerns for public safety cannot justify the complete silencing of a speaker in a public forum. The cases fail to provide any “bright line” to discern when public safety concerns become sufficiently compelling to justify restriction of speech, but a total exclusion such as effectively occurred in the Bible Believers case will almost certainly be rejected by the courts, even where a compelling public safety concern exists.

The Occupy Nashville decision confirms that health and safety concerns can justify limited restrictions that do not entirely prevent a speaker from continued speech or expressive conduct in a public forum the speaker has chosen. The Supreme Court has long recognized that content-based regulation of speech in a public forum is permissible only “to serve a compelling state interest” and only when the regulation “is narrowly drawn to achieve that end.” Perry Ed. Ass’n. v. Perry Local Educators Ass’n (1983). Yet “reasonable time, place or manner restrictions on expression are constitutionally acceptable.” Clark v. Community for Creative Non-Violence (S.Ct. 1984). The over-night exclusion of speakers from the plaza in Occupy Nashville was sufficiently narrow in its time-frame and scope.

Conversely, the effectively total exclusion of the evangelists in the Bible Believers case was not. The Bible Believers opinion admonishes that law enforcement officers must protect the right of speakers to express unpopular views in their chosen public forum, even though this might require affirmative intervention by law enforcement officers against those who oppose the speakers. Law enforcement officials must seek alternatives that maintain public safety, while still allowing provocative speakers to speak.

Douglas J. Curlew is an attorney in our Livonia office where he concentrates his practice on appellate law, premises liability, and insurance law. He may be reached at (734) 261-2400 or dcurlew@cmda-law.com.

Attorneys Karen Daley and Ethan Vinson will be presenting “Drones: Can We Control the Invasion?” at the Michigan Association of Chiefs of Police (MACP) 2016 Winter Professional Development Conference in Grand Rapids on February 4, 2016.

If you are attending the Conference, please consider attending their presentation and also stop by and visit several attorneys from our Firm at Booth #77.

On February 12, 2015, attorneys Andrew Brege and Jeff Clark conducted a training seminar for municipal clients in Lenawee County. The seminar covered the Open Meetings Act and Freedom of Information Act, and included updated information concerning the recent amendments to FOIA. The training seminar was attended by more than 70 county and other municipal officials and employees.

For additional information on the recent amendments to FOIA, please click here.

If your municipality is interested in a similar presentation, please contact Mr. Brege at (616) 975-7470 or abrege@cmda-law.com.

Attorneys Ethan Vinson, Andrew Brege, and Allan C. Vander Laan are attending the Michigan Association of Chiefs of Police Mid-Winter Conference on February 4-5, 2015. If you are attending the conference, stop by booth #75 to learn more about CMDA’s legal services. We hope to see you there.